tv [untitled] August 13, 2011 7:00pm-7:30pm PDT
>> and good evening. welcome to the meeting of the commonwealth club of california. i'm bob, a member of the commonwealth program community and a chair for of tonight's program. i'm also a member of the house of delegates of the american bar association, where it first met steve. this is a series of programs underwritten by the charles gesky family, which examines the constitution in the 21st century. this examines the balance between safety, security, and public order, and the protection of civil liberties and the integrity of the constitution on the other. tonight program will focus on threats to our american justice system caused by under-funding and indecisiveness.
i would like to mention that the question answer portion of the program will be moderated by a professor geoffrey hazard, a distinguished professor of law at uc hastings. the professor is a leading expert in the field of civil procedure of legal ethics and is good at asking questions. it is my pleasure to introduce our very special guest, stephen zack, president of the american bar association. with nearly 400,000 members, it is the largest volunteer professional membership organization in the world. mr. zack is the first hispanic american to serve as the president and the second to be born abroad. he was only 14 when his family emigrated from cuba under harrowing circumstances, including last minute detention by the secret police. he made it here. in two lines -- and two lines come to mind when i think of him. "this is my country, land of my
choice. this is my country, here i found voice." what a voice it is. he earned his aba at the university of florida and he is now in their hall of fame. he is a partner in the miami office of the national law firm. his clients range from former vice president al gore to philip morris, to the national geographic society, and he is listed in the 2011 edition of the best lawyers in america. his cross-examination of an expert witness in bush vs. gore made the front page of "the new york times." he has a framed in his office. he was the youngest attorney and first hispanic to serve as president of the florida bar. he was chair of the ethics commission and served on the orange board committee. in the aba, he has been a
florida state delegate, chair of the house of delegates, our policy-making body, served on the board of governors, and is a fellow of the american bar foundation. as the aba president, he has led national effort to protect state courts, improve civics education, and fight cuts to legal aid funding. it is his mission to make equal justice under law a vibrant living reality for everyone, not just four words carved on the facade of the supreme court building in washington. mr. zack is a passionate and tireless advocate for liberty and justice for all. as he wrote in a letter in today's "daily journal," "that is what our profession does. we get in the way of wrong. we get in the way of attempts to separate and divide our society. we get in the way of those who would let our constitutional
democracy whether away from ignorance. we get in the way of those who would further widen the justice happen in our country." please welcome a great lawyer, my friend, and our speaker, steve zack, president of the american bar association. [applause] >> that is a wonderful introduction, bob. thank you for those kind words and for all the good work you do at the aba and have done for many years. thank you for this invitation. it is the world's largest public affairs forum. i love your model. "find truth and set it free." what could be better than that? i have heard many mottoes under -- over the years. in many ways, it is what we are all about here today in finding some truth and hopefully setting a free. we need to explain why the
preservation of the justice system is so important. it should be obvious, right? it should be a very simple discussion. unfortunately, it is not. in my lifetime, the loss of liberty is not a theoretical exercise. i actually experienced that in cuba. and, part of the passion that i feel about this issue comes from the fact that, in 1961, the cuban constitution was identical to that of the united states. those words in that constitution did not protect us. words do not protect you. understanding and be leaving in the words do. -- and believing in the words do. we today have a serious problem
in that regard. the "new york times" three weeks ago -- "time" magazine three weeks ago reported as a cover story how the constitution is under siege, and "newsweek" about two months ago had a cover story about the failure of americans to understand our government. some very scary statistics. two out of every three graduating high-school students today believe that the three branches of government are republican, democrat, and independent. that is an actual poll. 75% of all americans don't know that religious freedom is protected by the first amendment. 75%. more americans can name the judges on "american idol" than on the supreme court of the united states. what does this mean to us?
how did we get here? well, first of all, unless the next generation understands the obligations imposed by the constitution, we are going to have a serious, serious problem. my children can always tell me about their rights, but very rarely tell me about their responsibilities. those responsibilities are critical to our future as a country. the fact of the matter is, if we do not understand the constitution, if our children do not understand the constitution, and appreciate the separation of powers, and appreciate the different roles that are branches of government are meant to play, how are our elected officials opposed to understand?
what has happened today in washington? what is happening to our country? what is happening to a saying that we all have heard? i will ask people to raise their hands. do you remember going to school when we all heard the statement, "i don't agree with what to say, but i will defend to the death your right to say it." to do you remember that? how many of you recall saying that? every single person in this room raised their hand. today, the statement is, "i don't agree with what to say, and if you say it, you are a bum, and you should not say it, and i don't like to." where did we lose our way? what happened to us as a country? we cannot have a civil discord and discussion amongst ourselves and still respect the other point of view.
is it 24-hour-day cable? is it a society that says "i won't listen to fox," or "i will listen to fox, and only fox," or "i listen to msnbc"? why can we not listen to the marketplace of ideas and understand that people have a right under our constitution to have different points of view? that is why you are here today. to listen to different points of view. the fact of the matter is, today, we are in a society that does not even respect the concept of having a right to a lawyer. as president of the american bar association, i have an opportunity to choose the theme for our law day, and i chose the
legacy of john adams from concord to guantanamo, because every high-school student had to think about why it is our obligation to defend those who have ideas different than our own. why we live in a constitutional democracy. a constitutional democracy is the difference of two words, each of which are two letters. that is the rule "of" law, and the rule "by" law. the rule by law as when a majority get together and get -- and decide what rights, if any, the minority has. nazi germany was one of the most lawful and unjust society is in the history of the world. the nuremberg laws were rules by
law. what exists around most of the world and in cuba today come in my own experience, is that the most powerful, the most privileged, get together and decide what rights, if any, the minority have. the united states constitution is the rule by law. the rule by law is to protect the minority from the tyranny of the majority. it is the classic definition of law. now, the rule of law is what justice kennedy and justice roberts recently spoke about. in their opinions, one was involving the flag-burning case. texas vs. johnson. the other one was by justice kennedy. the other one was by justice roberts very recently in the
demonstrations of military fit -- demonstrations at military funerals. they both said the same thing. they said, we don't like what these people did. as a matter of fact, what they did and their beliefs are abhorrent to most americans, and to us personally, but unless we protect their rights, all our rights are in jeopardy. and that is why the concept of a constitutional democracy is so important and must be preserved, but is not understood today. it is not understood by many americans. why? it is not that hard to understand. we live in a democracy. a democracy is supposed to be governed by a majority opinion. so, why isn't the court just governed by whatever the majority of people think? the answer is that that is what
is also called mob rule. a constitutional democracy is one that protect everyone's rights, even those who are the minority. that is a concept that was discussed in the federalist papers, which i know we all read when we have trouble going to sleep, and is the basis for our government, but what will happen, what will happen if there are no courts to protect the rule of law? that is really the fundamental message that i wish to talk to you about here today. we have a court system under attack. 11 states provide less than 1% of their entire state budget to funding the judicial system. california and florida tend to lead the pack. in this case, unfortunately. florida, 0.7% of the entire budget goes to funding
judiciary. the superior court in san francisco recently said that it will have to reduce its staff by 42% compared to where it was two years ago, and that it will have to close 25 court firms -- courtrooms. we have established a commission for the preservation of the justice system that is chaired by ted olson and david boyce, speakers at this great forum in the past, and 24 of the most prominent lawyers in the country, both women and men, all ethnicities, both sides of the aisle, to look at this issue. let me tell you what we found. in hearings around the country, we found the supreme court of georgia telling us that there court is so under-funded that she has to ask nexus' lexus for pencils for her law clerks. in ohio, you cannot finally pleading unless you bring your
own paper. in new hampshire, the court closed the courts to all civil jury trials for a year, a year. alabama supreme court justice said she is going to have to reduce civil trials by 50% and criminal cases by 1/3. well, we have spent $1.30 trillion in bringing the rule of law to parts of the rest of the world. the rule of law begins with one word. "access." access. if there is no access, there is no rule of law. today we have a just a step in this country where 80% of poor people do not have access to the port. -- court. we have a legal services corporation that is so under- funded, one out of every two phone calls go unanswered.
we have not only the traditional minority poor, we have the newly poor. the foreclosure crisis has caused a vast new number of people to cannot support to go into court. even if they could afford it, if the courts are closed, there is no access. there is no access. around the country, the courts are closing down. the head of the civil division in los angeles told me that had the original budget gone through, they would of had to close 150 courtrooms. close them. who cares? is this really important? aren't these just a bunch of troublemakers going to court, clogging up the court system? does it make any difference to the business community or to average americans who don't need the court system? well, we are all going to be a minority some day in some way.
we are all going to need the court system. the fact is this is as important to the business community as any other community. that is something that has not been written about and that we learned during the course of these commission hearings, that we had colorado's of fortune 50 companies and general counsel -- ceo's of fortune 50 companies and general counsel telling us there are billions of dollars tied up in the court system between powerful corporations that cannot get their day in court because the courts are not there. they are closed down. they cannot put it on their balance sheet. they can put it on their balance sheet, they could have new jobs. they create new technologies. but, they don't know whose money it is. in los angeles, they said, most recently, they have lost $16
billion in economic value because the courts have been closed. $1.6 million in tax. we have been the envy of the world as to our justice system. as the world becomes smaller and as multinational corporations decide where they will invest their money, they have historically invested it in the united states because we have had a court system that has been the envy of the world, but they won't continue to do that if they cannot get justice in america. there is an economic reason as well as a moral reason to make sure that our courts are open. we have a crisis in our federal system. 92 vacancies exist today in the federal court system. 15% of our federal court is vacant. we have 26 districts under federal emergencies, judicial emergencies.
we have 18 judges come out with no opposition on either side, and it wasn't a political issue. could not get one of them through congress. you know, when i talk to the graduating students, i just went through that season and had a chance to talk to many, many graduating law students, and i talked about those four words come and i said, you have read millions of board to get to today. you only have to think about four words. they are inscribed over the supreme court of the united states. "equal justice under law." it doesn't say "equal justice for the rich and powerful and privileged." equal justice. "under lock" the meet -- needs the rule of law under the constitution. -- "under law" means the rule of law under the constitution.
when i was leaving cuba, we were taken off the plane and held incommunicado in a private room. there were just locked rooms. you didn't know if you would ever see your family again. it only takes one night of that to change your life forever. in many ways, i believe that was the moment i decided to be a lawyer. i never wanted to feel so helpless again in my life. i also knew what was happening there was wrong and that somebody should care about it. if i ever had an opportunity to make a difference, i would do that. i believe that that moment is one that emphasized to me the importance of the rule of law and why we have to preserve our system of justice. most importantly, i remember that night because of a conversation i had with my grandfather.
we have learned that the business he learned his whole life to establish was being taken over. what happens is they come to your house, they arrest you as an enemy of the state, and they take over your business. we left with the clothes on our backs. i said to my grandfather, how do you feel? he said, you know, i obviously feel terrible, but i feel good about one thing. how could you feel good about anything on a light -- night like tonight? he said, i feel good i'm going to the united states. i know i will never be arrested here again because if the united states falls, there will be no place to go. so when i think of your words, i found my voice and my place, to me, this is a promise made many years ago to my grandfather that he had nothing to worry about, and that is why this is a
message that we must continue to talk about, and we must engage the american people to make sure that they want us as a profession and a society to get in the way of people who do not want to respect the rights of others. thank you very much. [applause] >> steve wants to stand up there, as i understand it. my job is to read a selection i have made of questions, which were very good, and covered a wide range. those of you who may not hear your question as one i have selected, just have in mind that we had a very good questions, just too many. now, should i make this announcement? this is for the radio audience.
they're listening to the commonwealth club of california. our speaker today as steve zack, president of the american bar association, who is talking about threats to the american justice system caused by under- funding of our courts, and i might say as well, under- appreciation of our courts. with that in mind, i have made a selection of the questions. let me start with this, if i may. what can regular citizens, ordinary citizens, do to strengthen and uphold the u.s. justice system? >> i think maybe that is the seminal question as to why we are gathered here today and why we are talking about this issue. lawyers alone will never accomplish that. judges have the worst.
they're not supposed to be out there asking for money for other court systems. the average citizen has to demand the attention of the courts. sandra day o'connor has one of the best statement. in every society, there have to be a safe place. in a democracy, that is a place that is the courts. we have to have the average citizen talking about how they want to preserve that save space in our society and talk to their legislatures, because there is a view among legislators, not all of them, but many, that the courts are another agency. it is not another agency. it is a co-equal branch of government but is necessary to protect our fundamental liberty, and to be such a branch, it
needs adequate funding. when they say we have an economic crisis, we do have an economic crisis. there is no question about that. don't put the courts as another library for another road. it is not. it is the basis why we today enjoy our freedom. we have got to make that clearly understood. every time you talked legislator, every time you have an opportunity to talk to a civic group, you need to make that distinction. >> thank you. the next question from the audience, if you could choose only one reform of the american justice system, what would it be and why? >> it would be to de-politicize the funding of the justice system. what you have is the fact that the courts get in the way. they get in the way of the
legislature or the executive branch doing what it want to do. it becomes very much a political issue as to be adequate funding of the courts. there should not be that tension that exists for the courts doing the right thing. there should be an opportunity in some states, and we will look at this next year in our commission resolution, one state as a citizens' committee that looks at the necessary funding for the state judiciary. then, there is a determined number based on empirical evidence. then, unless the governor and the legislature a firm affiliated affirmatively veto that, it becomes the number for the justice system in the state. i would like to see a way of disconnecting the two so that the justice system is absolutely funding and we provide access
for citizens. >> the next question is rather different. how has the war on terror affected the american justice system in the past or up until now? what do you foresee in the future? >> the aba has spoken out about that issue on a number of occasions. it is important to preserve the bill of rights. i think that benjamin franklin -- he said those who will sacrifice liberty for security deserve neither. the fact is that this is a real problem. i see it being a much greater problem. the think tanks that have looked at the issue, unfortunately,
have said that in the next 10 years, there will be not one, but two dirty nuclear bombs exploded in the united states. i hope they're wrong. that is what the statistics show. if that does happen, god forbid, i believe that our fundamental democracy will be under the greatest attack it has ever experienced. as a matter of fact, one of the issues we're looking at in the aba is what would be the aba's response in the event there was a dirty nuclear bomb and habeas corpus was suspended in the united states, as it was by lincoln and by roosevelt? a lot of people don't remember that and don't know it. england, i was in england talking to their lawyers. i was talking to their security people. they don't have a constitution. they have much different ability